On June 26, 2024, the Quebec government published the final version of the Regulation to amend mainly the Regulation respecting the language of commerce and business ("Regulation"). Some provisions of the Regulation come into force on July 11, 2024; the remainder will come into force on June 1, 2025.
The final version of the Regulation includes some changes to the draft regulation ("Draft Regulation"), which was published on January 10, 2024, and was followed by a consultation period. Namely, the Regulation abandons certain amendments that were proposed in the Draft Regulation with respect to product markings and embedded software, which had raised several questions in the legal and business community. One can presume that these subjects could be covered by a later regulation.
Key takeaways from the Regulation include:
- Trademarks in product markings, public signage and commercial advertising. The Regulation will allow the use of "recognized trademarks" (i.e., registered trademarks, trademarks pending registration, and common law trademarks) in a language other than French in product markings, public signage and commercial advertising. The government is therefore reintroducing the rule that previously prevailed, rather than limiting the exception to registered or pending trademarks, as initially proposed.
- Generic terms and descriptions included in a trademark in another language. The Regulation introduces new translation requirements when a generic term (one or more words describing the nature of the product) or a description (one or more words describing the characteristics of the product) is included in a trademark in a language other than French that appears on a product, its packaging, or documents or items supplied with it.
- Grace period until June 1, 2027. Until June 1, 2027, businesses will be permitted to sell, distribute, lease or offer non-compliant products manufactured before June 1, 2025.
- Marked predominance of French in public signage and commercial advertising. The Regulation provides new rules governing the requirement that French be "markedly predominant" in public signage and commercial advertising, namely by stipulating that the space allotted to the French text must be at least twice as large as the space allotted to text in another language.
- Contracts of adhesion. The Regulation clarifies the concept of "documents related" to a contract of adhesion and introduces new specific rules with respect to contracts of adhesion concluded by telephone or using technological means.
- Engraved, baked, inlaid, riveted, welded or embossed inscriptions on products and embedded software. The Regulation does not require that these inscriptions be translated when they are necessary for the use of the product (e.g., the terms "On", "Off", etc.), as originally proposed. The Regulation also abandons the amendments proposed by the Draft Regulation to extend the scope of the notion of product inscriptions to include inscriptions displayed through an embedded software. However, one can presume that these subjects could be covered by a subsequent regulation.
To find out more about the impact of these changes on trademarks, read our article published on July 8, "Trademark owners: Get ready for the changes to the Charter of the French language – June 2024 update".
Below is a more detailed analysis of the changes introduced by the Regulation.
1. Product inscriptions
According to the Charter, any inscription on a product, its container or wrapping, or on the documents that accompany it, must be written in French.1 It is possible to add inscriptions in another language, but they cannot be given greater prominence than the French ones.
The Regulation respecting the language of commerce and business ("RLCB") provides that an inscription on a product may be written solely in another language in certain exceptional cases. This applies in particular to permanent inscriptions – such as those that are engraved, baked, inlaid, embossed, welded or riveted – on products from outside Quebec. That said, this exception does not apply to inscriptions relating to safety, which must be in French and permanently appear on or accompany the product.2
This rule remains unchanged. Here, the government abandoned the originally proposed amendment to the Draft Regulation, which would have restricted the scope of the exception by excluding not only safety-related markings, but also those that are necessary for the use of the product (e.g., the terms "On", "Off", "Hot", "Cold", etc.).3
While the government has so far decided against these amendments, which raised a number of concerns when they were published earlier this year, it is expected that further regulations will be published to cover permanent registrations on products and embedded software.
A. Exception for trademarks
The Act respecting French, the official and common language of Québec ("Bill 96") introduced a new rule to the Charter to regulate the use of trademarks on products in a language other than French.4
This rule, which comes into force on June 1, 2025, will limit the use of trademarks in another language to registered trademarks for which no French version is registered.
In order to address concerns about the particularly long delays in registering a trademark, the Draft Regulation proposed to amend the RLCB to provide that a trademark pending registration would be deemed to be a registered trademark for product inscriptions, effective from the date the application for registration is filed.5
The Regulation does not retain this amendment. Rather, it specifies that a trademark other than a registered trademark may appear on a product solely in a language other than French if the trademark is recognized and there is no corresponding French version is registered.6
As a result, we are essentially returning to the situation that previously prevailed in which recognized trademarks were among the exceptions that allowed for a language other than French on the product markings. The government is also abandoning the more restrictive criterion of a registered or pending trademark proposed by the Draft Regulation, since "recognized" trademark also includes trademarks that are simply in use, yet unregistered.
However, as proposed in the Draft Regulation, the Regulation provides that if the trademark in another language contains a "generic term" or a "description" of the product, it must appear in French on the product or a medium permanently attached to it. "Generic term" and "description" are defined as follows:
- Generic term: one or more words describing the nature of a product, excluding the name of the company or the name of the product as marketed.
- Description: one or more words describing the characteristics of a product, excluding the name of the company or the name of the product as marketed.7
Designations of origin and distinctive names of a cultural nature will not be considered as a description or a generic term.8
Effective: June 1, 2025.
B. Embedded software
It should be noted that the Regulation does not retain the amendments that were proposed by the Draft Regulation to extend the scope of the notion of product inscriptions to include inscriptions displayed through an "embedded software".9
With these amendments, computer systems that are integrated in a device, machine or other system and that control that device, machine or system10 (e.g., a mobile application allowing to control certain features of a household appliance, vehicle or medical device) would also have been subject to the Charter requirements on product markings.
This eases the concerns raised by the proposed amendment.
C. Transitional measures
Though these new requirements take effect on June 1, 2025, the government has shown flexibility and provided businesses with a grace period to allow them to sell their non-compliant stock. The grace period does not, however, apply to the exceptions in respect of trademarks.11
Through June 1, 2027, businesses will be permitted to distribute, sell, lease or offer non-compliant products manufactured before June 1, 2025.12
The grace period also applies to products manufactured between June 1, 2025 and December 31, 2025, that are subject to new federal labeling rules set out in the Regulations Amending the Food and Drug Regulations (Nutrition Symbols, Other Labelling Provisions, Vitamin D and Hydrogenated Fats or Oils) or the Regulations Amending the Food and Drug Regulations and the Cannabis Regulations (Supplemented Foods).13
2. Public signage and commercial advertising
A. Exception for trademarks
The Charter provides that public signs and posters and commercial advertising must be in French. They can be made both in French and in another language, provided that French appears in a "markedly predominant" manner.14
Bill 96 introduced an exception similar to the one applicable to product inscriptions for trademarks in a language other than French, in order to allow the use of a registered trademark solely in a language other than French in public signs and posters and commercial advertising.15
Similar to the rules for product inscriptions, the Regulation specifies that a trademark other than a registered trademark may be used in public signage and commercial advertising solely in a language other than French if the trademark is recognized and there is no corresponding French version in the register of trademarks.16
It should be noted that French must always appear in a markedly predominant manner in public signs and posters visible from outside premises, even if this exception applies and a trademark in another language is displayed.17
Effective: June 1, 2025.
B. Marked predominance and public signs and posters visible from outside premises
Starting June 1, 2025, new provisions will govern the concept of marked predominance. The regulation that currently defines this concept will be revoked.18
In public signage and commercial advertising, French will be considered to be markedly predominant when the French text has a "much greater visual impact" than the text in another language.19 For the French text to have a much greater visual impact, it is necessary that:
- The space allotted to the French text is at least twice as large as the space allotted to the text in another language.
- The French text's legibility and permanent visibility are at least equivalent to those of the text in another language.20
In dynamic signage, where texts in French and another language are displayed in alternation, the French text will have a much greater visual impact when it is visible at least twice as long as that written in another language.21
To ensure a marked predominance of French in public signs and posters visible from outside premises, when a trademark in another language appears on the signage, it must be accompanied by terms in French, such as a generic term, a description of the products or services, or a slogan.22 The sign or poster is considered visible from outside premises when it can be seen:
- From outside a space, whether closed or not, including on an immovable, a group of immovables or inside a shopping centre.
- On a bollard or other independent structure.23
Effective: June 1, 2025.
3. Commercial documentation
With respect to commercial documentation, the Charter provides that catalogues, brochures, folders, commercial directories, order forms and any other documents of the same nature that are available to the public must be in French.24 These documents may only be made available to the public in another language if the French version is accessible under conditions at least as favourable.
The Regulation does not include the amendment proposed by the Draft Regulation which intended to expressly stipulate that these documents include information published on websites and social media.25 That said, this amendment would have only confirmed the interpretation favoured by the OQLF, which already applied these requirements to websites and social media.
The Regulation also does not change the provisions of the RLCB allowing the use of a recognized trademark solely in a language other than French in commercial documents when no French version of the trademark appears in the register of trademarks.26
4. Contracts of adhesion
The Charter's requirements regarding contracts of adhesion were significantly strengthened by Bill 96, which now requires that all contracts of adhesion be translated into French, with some exceptions.
Indeed, since June 1, 2023, a contract of adhesion in a language other than French can only bind the parties if such is their express wish, after a French version of the contract has been given to the adhering party. Where this is the case, the documents relating to the contract, which must in principle be translated into French, may be drafted exclusively in the other language.
The Regulation specifies that a document "related to" a contract of adhesion includes a document:
- attesting to the existence of the contract, such as an insurance certificate (e.g., a certificate of insurance or proof of insurance).
- whose attachment to the contract is required by law, such as a resiliation or resolution form (e.g. a termination or termination form).
- that otherwise constitutes an ancillary document.27
Special rules are also introduced with regard to contracts of adhesion concluded by telephone or using technological means.28
For a contract concluded by telephone, the obligation to provide a French version of the contract will be satisfied if the adhering party states an express wish to conclude the contract in another language in the following cases:
- The adhering party has been previously expressly invited to consult the applicable standard clauses drafted in French by technological means. It will therefore be possible to send the standard clauses in French by email or by sending a hyperlink by text message, rather than reading all the clauses over the phone.
- The contract must take effect immediately and the adhering party does not have technological means to access the applicable standard clauses.
As for contracts concluded by technological means, the requirement to issue a French version will be satisfied as soon as the French version of the standard clauses is provided to the adhering party, without any other specific requirement.
Effective: July 11, 2024.
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While the Regulation provides useful clarifications for the interpretation and application of the requirements of the Charter, they also raise their share of questions.
The authors are grateful to law student Gabrielle Poulin for her invaluable contribution to this article.
Footnotes
1. Charter, s. 51.
2. RLCB, s. 3.
3. Draft Regulation, s. 2.
4. Charter, s. 51.1.
5. Draft Regulation, s. 9.
6. Regulation, s. 2, inserting s. 7.1.
7. Regulation, s. 6, inserting s. 27.2.
8. Id.
9. Draft Regulation, s. 9.
10. Embedded system | GDT (gouv.qc.ca).
11. Regulation, s. 7.
12. Regulation, s. 8.
13. Id.
14. Charter, s. 58.
15. Charter, s. 58.1.
16. Regulation, s. 4, replacing s. 25.1 RLCB.
17. Charter, s. 58.1.
18. Regulation, s. 8.
19. Regulation, s. 6, inserting s. 27.4.
20. Regulation, s. 6, inserting s. 27.6.
21. Id.
22. Regulation, s. 6, inserting s. 27.7.
23. Regulation, s. 6, inserting s. 27.5.
24. Charter, s. 52.
25. Draft Regulation, s. 9.
26. RLCB, s. 13.
27. Regulation, s. 6, inserting s. 27.3.
28. Id.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.